'Second Republic' now in existence

By Tseng Chien-yuan 曾建元

At the 80th birthday dinner for former presidential adviser Koo Kwang-ming (辜寬敏) on Oct. 15, President Chen Shui-bian (陳水扁) raised the prospect of constitutional reform and said that Koo's previous suggestion of a "Second Republic" was worth considering. The president hoped that this concept could serve as a channel for the public to think of ways to establish a nation that truly belongs to the Taiwanese.

In response to Chen's remarks, Koo explained that a "Second Republic" means freezing the Constitution of the Republic of China (ROC) and establishing a new constitution written by the Taiwanese. In the future, if the government wants to revive the Constitution, it can easily do so.

On Oct. 17, media reports quoted a source with the Democratic Progressive Party (DPP) as saying that the preamble of a "Second Republic" constitution would mean freezing the general principles contained in the current Constitution, avoid the controversial parts touching on Taiwan's sovereignty, explain the current national situation and detail the conditions under which the old Constitution could be restored.

The general principles of the current Constitution deal with national polity, sovereignty, the people and citizenry, territorial integrity and the national flag. It is very difficult to imagine how freezing such vital principles could solve the dispute over Taiwan's sovereignty. Moreover, if these principles were suspended but no new provisions are provided, that would be like voluntarily canceling the constitutional provisions defining Taiwan's national status and tantamount to a downright abolition of Taiwan's sovereignty.

In my opinion, instead of freezing the general principles of the Constitution, it would be much better to simply put aside or ignore the dispute over sovereignty and maintain the existing articles. As long as the Nationality Act (國籍法) centers its definition on the citizens of the Republic of China on Taiwan, and as long as the scope of the Constitution amended by the Taiwanese is interpreted based on the popular sovereignty principle and social contract theory, a practical reinterpretation of the Constitution would also achieve the goal of a "Second Republic."

According to former president Lee Teng-hui's (李登輝) discourse on a "Second Republic," the May 1991 amendments to the Constitution, which limited its scope to the areas that were free prior to unification while also recognizing the People's Republic of China's (PRC) as the governing power over China, meant that Taiwan already had entered a "Second Republic" and cross-strait relations were defined as special state-to-state relations. The current Constitution and its additional articles are therefore in effect a "Second Republic" constitution for the ROC. If we can guarantee that the current Constitution only refers to the territories actually controlled by the government of Taiwan, no legal dispute over sovereignty would arise with China even if the articles dealing with the ROC's territory were left untouched.

Nonetheless, the idea of a "Second Republic" constitution is worth some thought. Given the form and content of the current Constitution, trying to amend it by focusing on freezing or regulating only these 12 additional articles is not the right approach.

Similar to other countries, the second phase of the constitutional reform should allow for more freedom to amend the main text of the Constitution to make it more understandable. This would also mean that constitutional discussions would no longer be restricted by the structure of the text, and it would also make it easier for the general public to read the Constitution, thus reinforcing constitutional knowledge.